(February 25, 2019) - The U.S. Department of Education has proposed new regulations that, if adopted, would significantly change the landscape of Title IX sexual misconduct investigations. Title IX, enacted in 1972, bars sex discrimination in schools and colleges ("recipients") that receive federal funding.
The proposed regulations add new due-process protections to respondents in Title IX investigations. The U.S. Secretary of Education, Betsy DeVos, summed up the changes when she stated, "Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined."1
The proposed regulations would replace all existing administrative guidance documents that were not passed through the rulemaking process. On February 15, 2019, the public comment portion of the rulemaking process was completed. The proposed regulations' major changes to Title IX investigations include the following:
- Adopting a narrower definition of sexual harassment;
- Limiting recipients' investigation responsibility to only cases in which formal complaints are filed and only to incidents that take place within an educational program or activity;
- Requiring live hearings and guaranteeing the right of cross-examination;
- Providing recipients with the option of using a higher standard of proof; and
- Providing recipients with more flexibility for informal resolution through mediation or other alternative dispute resolution procedures.
Narrower Definition of Sexual Harassment
The proposed regulation defines sexual harassment as either an employee's conditioning the provision of an aid, benefit, or service on an individual's participation in unwelcome sexual conduct (i.e., quid pro quo), "nwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies access to the recipient's education program or activity," or sexual assault as defined in 34 CFR 668.46(a). This contrasts with prior guidance, which defined sexual harassment more broadly as "unwelcome conduct of a sexual nature."
The new definition creates a greater evidentiary burden than the prior rule and codifies existing court decisions that require the complainant to show that the alleged sexual misconduct was so severe, pervasive, and objectively offensive that it deprived the complainant of access to the educational opportunities or benefits provided by the recipient. (See Davis v. Monroe County Bd. of Educ., 52 U.S. 629, 651-52 (1999); see also T.C. ex rel S.C. v. Metro. Gov't of Nashville & Davidson Cty., 2018 U.S. Dist. LEXIS 113517, at *18-19 (M.D. Tenn. July 9, 2018).
Change in Reporting Procedures
Under the proposed regulations, recipients are not required to investigate alleged misconduct unless a formal complaint is made to a designated Title IX official with the ability to remedy the situation, thereby limiting a recipient's obligation to investigate only those reports of which the recipient has "actual knowledge." This would not include reports made to professors, resident advisors, and others who have not been designated as the appropriate Title IX reporting official. This differs dramatically from the prior guidelines, which required almost every campus employee to be designated as a mandatory reporter of sexual misconduct who was required to notify the Title IX office upon receiving information about a possible incident.
Similarly, the proposed regulations hold recipients responsible only for sexual misconduct that takes place within its educational "program or activity" and perpetrated by a person "under the school's disciplinary authority." In contrast, prior guidelines required schools to "process all complaints of sexual violence, regardless of where the conduct occurred, to determine whether the conduct ... had continuing effects on campus."
Live Hearings and the Right to Cross-Examination
The proposed regulations are also groundbreaking in placing an emphasis on the presumption of innocence of the accused party. Significantly, the new regulations require that recipients "must provide for a live hearing" when adjudicating a case. This stands in sharp contrast from the previous guidelines that discouraged live hearings and instead encouraged schools to have a single investigator adjudicate the claim through a series of separate meetings with the parties and witnesses.
Notably, the new regulations also require recipients to provide an opportunity for cross-examination of all witnesses, including the parties. Students are prohibited from cross-examining each other directly. Instead, cross-examination must be done by each party's advisor of choice, and an advisor must be provided for this purpose if a party does not have one. In addition, the proposed regulations allow a witness to be questioned from a separate room, provided that the questioning party and fact finders can "simultaneously see and hear" the person testifying.
Burden of Persuasion Altered
The proposed regulations allow recipients the option of adjudicating sexual misconduct claims using either a "preponderance of evidence standard" or a "clear and convincing" evidence standard, a higher burden of proof, whereas the prior guidance required schools to utilize the preponderance of evidence standard.
The proposed regulations allow the recipient to adjudicate using a preponderance of the evidence "only if it is also used for conduct code violations that do not involve sexual harassment but carry the same maximum disciplinary sanctions." Otherwise, the proposed regulations mandate recipients to use the clear and convincing standard.
Encouragement of Informal Dispute Resolution
The proposed regulations provide that the parties may engage in an informal dispute resolution process such as mediation at any time before a final determination of the matter has been reached. Though the prior guidelines allowed for informal dispute resolution in certain circumstances, they prohibited mediation in sexual assault cases, even on a voluntary basis.
If the proposed regulations in their current form go into effect, there are two primary concerns for recipients:
First, recipients will be charged with investigatory obligations upon receipt of "actual knowledge" of sexual harassment. Recipients should provide updated training to their staff and educators regarding both informal and formal reporting of sexual harassment claims under the regulations.
Second, recipients should update their grievance policies and procedures to comply with the new regulations. Lewis Brisbois can help you address both concerns.
 Russlynn Ali, Letter p. 3, https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf.
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